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Criminal Appeals Nos. J=258‑259 of 1962, decided on 23rd October 1962.
‑Two appeals heard together‑Each appellant entitled to consideration of case separately and indivi dually.
--Accused sentenced to 3 years' R. I.‑3 years' R. 1. maximum punish ment provided under S. 411 itself‑Sentence, held, not enough in circumstances of case‑Notice issued to accused to show cause why sentence be not enhanced.
‑Stolen property subject‑matter of one theft found from possession of two accused though at different times and in different places‑Joint trial, held, legal.
Saidoo and another v. The Crown (1950) 51 Cr. L J 550 and Waryam s/o Kabir and another v. The Crown (1950) 51Cr. L J 1559 rel.
Appellants through Jail.
S. Murtaza Hussain for Respondent. Date of hearing: 23rd October 1962.
The appellants were tried jointly for an offence under section 411, P. P. C. by the learned Additional Sessions Judge, Nawabshah (Mr. A. G. Muhammadally). Both. were found guilty and appellant Esso was convicted to suffer . I. for one year. Appellant Gulsher was also convicted under section 75, P. P. C. and sentenced to suffer R. I. for 3 years under sections 411/75, P. P. C. Both have appealed, separately.
2. Complainant P. W. 1 Muhammad Said was entrusted with a transistor radio for repairs by Gangadas of Dehriki in Sukkur District in the beginning of August 1961. Muhammad Said came to Karachi and purchased certain necessary part for the purpose. He boarded Khaiber Mail from Karachi on the night between 10th and 11th August 1961. He kept the attache case containing these articles, two pants and other property near him in the Inter Class compartment and slept away. He woke up after the train had left Padidan and found his attacheh case missing. Khairpur was the next stop and he informed the railway police who advised a report at Rohri. Rohri Police directed him to file his report at Padidan. He came to Padidan and lodged his F. I. R. Exh. 3 on 11‑8‑61 at 8‑5 a.m. mentioning therein the stolen articles. The two appellants were subsequently arrested and stolen property recovered from them. They were convicted as mentioned above.
3. Each appellant is entitled to the consideration of his case separately and individually. The case of appellant Gulsher may be taken up first.
4. The appellant was arrested on 15‑8‑61, at Meting railway station, by constable P. W. 6 Sakhawat Ali who was on special duty on passenger train 255 Down, coming from Hyderabad to Karachi. The constable saw the appellant entraining under suspicious circumstances. He knew him before. Two mashirs P. W. 5 Usman and Taj Muhammad were called. The appellant was carrying a canvas bag. In the presence of the mashirs the bag was opened and it was found to contain 5 radio parts besides clothes which included pants also. The appellant was sent up in a different case. Many more stolen articles were also secured from him by Sakhawat Ali.
5. P. W. 5 Usman was working as points‑man at Meting railway station on 15‑8‑61 while Taj Muhammad was a watchman there, Usman states that in their presence Gulsher appellant was searched by police and some currency notes of over Rs. 900 and two watches were secured from his person and also a hand bag which contained 5 parts of radio. The appellant was also wearing pants on him. Some more clothes and other articles were also secured from him and mashirnama Exh. 11 was prepared. The mashirnama under item No. 6 shows that 5 new radio parts were secured from the bag. It also shows that some pants were also secured.
6. The appellant in his statement in the Sessions Court stated that 5 radio parts and grey pant were not secured from him nor that the articles were his. He explained the evidence of P. Ws. against him by saying that they were all railway employees.
7. P. W. 5 Usman is a disinterested witness and there is no reason also why P. W. 6 Sakhawat Ali should not be believed. There is sufficient evidence for the conviction of the appellant under section 411, P. P. C.
8. As regards his conviction under section 75, P. P. C. the record shows that he has a good number of previous convictions which have been proved satisfactorily according to law. P. W. Ahmed Ali clerk Central Prison, Sukkur has produced extracts from the Prisoners Admission Register of Sukkur. His evidence shows that the appellant had served the following sentences in view of his convictions:‑
(1) 2 years' R. I. under section 379, P. P. C. awarded to him by R. M. Larkana on 10‑5‑51.
(2) 2 years' R. I. on 4‑8‑52 under section 279, P. P. C. by R. M. Larkana.
(3) 18 months' R. I. and fine of Rs. 200 or 4 months' R.I. in default awarded to him by City Magistrate, Shikarpur of 7‑3‑55.
(4) One years' R. I. under section 411, P. P. C. awarded to him by Sub‑Judge and F. C. M., Jacobabad on 31‑5‑60.
Evidence of Haider Ali, Finger Print Bureau Lahore shows that the appellant had the following convictions
"(1) By F. C. M. Ghotki on 18‑2‑46 under section 457, 380 P. P. C. R. I. for 9 months under section 457, P. P. C., 2 months' R. I. and fine of Rs. 100 or 3 months' R. I. under section 380, P. P. C.
(2) By F. C. M. Pano Akil on 21‑7‑47 under section 411, P. P. C. and sentence to 18 months' R. I.
(3) By R. M. Larkana on 10‑5‑51 under section 379, P. P. C. and sentenced to 2 years' R. I.
(4) By R. M. Larkana on 4‑8‑52 under section 379, P. P. C., and sentenced to 2 years' R. I.
(5) By C. M. Shikarpur on 7‑3‑55 under section 380, P. P. C. and sentenced to 18 months' R. I."
The appellant in his statement either stated that he does not remember or stated that he was acquitted, but has not proved that he was in fact acquitted.
9. Section 75, P. P. C. speaks of enhanced sentence. The sentence of 3 years awarded to him is provided for in section 411, P. P. C. itself. It appears to me that the learned Additional Sessions Judge has not utilised section 75 against the appellant ‑ at all although charge under section 75 was proved and so also f the evidence that the appellant had many convictions against hi lm to justify an enhanced sentence under section 75, P. P. C.
10. The appeal is dismissed. Notice will issue to him to show cause why his sentence should not be enhanced.
11. The case against appellant Esso may now be considered. The pieces of evidence against the appellant are these :
12. While in police custody the appellant Esso led P. W. 9 S. H. O. Ghulam Hussain and P. W. 4 mashir Gul to the shop of P. W. 2 Alamgir a radio mechanic in Shahdadpur and there pointed out the transistor in Court at that shop. The S. H. O. secured the transistor thus pointed out under mashirnama Exh. 9. Evidence of P. W. 2 Alamgir shows that the appellant had brought the radio to his shop for repairs on 15‑8‑61. Alamgir had issued such a receipt Exh. 5 to the appellant. This receipt was secured on 22‑8‑61 by the Head Constable P. W. 7 Pahalwan from the appellant in presence of P. W. 3 Kandero. Kandero also deposes to this fact. The corroborating mashirnama is Exh. 7. The above evidence clearly establishes that the appellant had the stolen transistor in his possession and that he had banded over the same to P. W. 2 Alamgir mechanic for repairs and obtained the receipt Exh. 5 from him for the purpose.
13. The appellant in his statement in the committal Court Exh. 20 and in his statement in the Sessions Court Exh. 21 has denied his leading the police to the shop of Alamgir and pointing out the transistor radio in Court, in that shop. He has also denied that receipt Exh. 5 was secured from him by the police. He alleges that co‑accused Gulsher was hostile to him and had, therefore, implicated him falsely. The appellant further stated that he had seen the transistor radio with accused Gulsher at Jhol where Gulsher wanted to dispose it of but as everybody knew that it was stolen property no one purchased it there. According to the appellant Gulsher had handed over the radio to Alamgir and obtained the receipt in the appellant's name as Gulsher knew the appellant before. I disbelieve the statement. It is absurd. Alamgir as pointed out by the learned Additional Sessions Judge is a mohajir and not interested in any person and there is no reason why Alamgir would implicate the appellant as being the person who had left the transistor with him for repairs and obtained receipt Exh.5 for the purpose. As the appellants Esso and Gulsher were found in possession of the stolen transistor radio soon after the theft the presumption will be that they bad received or retained the stolen property dis honestly knowing the same to be stolen. Their denial of being in possession of the property adds to the inference against them. Esso's appeal is dismissed.
14. The joint trial of the appellants is justified under clause (f) of section 239, Cr. P. G. since the property found from the possession of the appellants though at different times and in different places was subject‑matter of one theft committed in the train by the removal of the bag containing these stolen articles, and the possession of which had been transferred by one D offence i.e., property was transferred from 'the owner to the thief. The phrase does not imply a transfer from thief to receiver of stolen property. I am fortified in this view by the same view expressed by Kayani, J., in the case Saidoo and another v. The Crown (P L D 1949 Lah. 535) and by Rahman, J. in the case Waryam son of Kabir and another v. The Crown (P L D 1950 Lah. 348).
K. B. A.
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